switching PSW to Tier 2 refused after employer rcvd license

[iceheat]

Hi All,
My employer applied for sponsor license in April 2012 but got refused in october 2012 and hence made second application soon after. My last visa was PSW and expired on 14th sep 12. I made my tier 2 general application on 13th sep before it expires. I applied with all the documents and offer letter but a cover letter from my employer to explain the situation of ukba taking longer time to process the application. I also updated UKBA with my employers second application reference number along with employer cover letter. I took biometric as well and finally my employer received their license on 11th dec 2012 but unfortunately I received my refusal on 13th dec. So SAD
They have given me a chance to appeal but now I need to find out what is the best way to take this further.
Today dated 17/12 I received my sponsorship certificate and found new thing about salary. I am currently working at 22K and SOC code is 3131. Will there be a problem regarding required salary. I thought I meet the salary requirement but confused now. any help would be much appreciated.
regards,

amir

[manci]

what is the date of the refusal letter and what reason(s) does it give for the refusal?
What is the job title and description given in the CoS?

[iceheat]

Hi Manci,

Thank you for your response.

My employer received their license details on 11th Dec 2012 and I received my refusal letter on 13th dec but the letter itself was dated with 11th Dec.

Job title: IT Engineer
Job type: 3131 Technicians, IT operations
Description: Provide software, hardware & network assistance and support to 'my employer' clients and employees across a number of business units within and around London. Assist in internal IT projects and new business solutions.

[manci]

what reason(s) does ithe letter give for the refusal?

[iceheat]

Apologies for missing out information.
the refusal letter mention about me not submitting CoS letter and ukba is unable to assign 50 points in total for CoS and appropriate salary to be mentioned in CoS.

[manci]

IT support technician is SOC code 3132, not 3131. However, neither SOC 3131 nor 3132 are NQF level 6 jobs which you must have when switching into T2G. See para 64 in the T2 policy guidance. 3132 is NQF3, 3131 is NQF4. The relevant part of the codes of practice is here:

http://www.ukba.homeoffice.gov.uk/sitec ... iew=Binary

also, 3132 or 3131 don't seem to be on on the shortage occupation list where NQF4 would be sufficient:
http://www.ukba.homeoffice.gov.uk/sitec ... tnov11.pdf

Apart from the above, which may well be a show stopper, have you been given right to appeal in the refusal letter and, if so, within how many days?

[iceheat]

Thank you for your response.
Yes, I have right to appeal and I will be making an appeal with the help of solicitor by the end of week.
Everytime I go through these rules, it makes me so confused and i start doubting on the paperwork itself. Going through T2 policy guidance at para 64 onwards, it doesn't seem to apply for people switching from T1 to T2.
Also, as I am on Tier 1 PSW visa, UKBA haven't mentioned anything under PSW section, para 89 of T2 guide.
In regards to SOC code, I am not sure if it also applies to PSW visa holders.
I still seek your help and suggestions on what is right and what is not clear? Any suggestion that you think I should change or consider, please let me know.
Rules are so confusing and truely not clear to everyone.

[rehan01]

HI ICEHEAT,

you dont need to be confused.

its very simple if you look at SOC CODE for example your SOC CODE IS 3131, and it say salary must be £26000 for this code but in reality you are geting paid £25000 than you are not eligible.

but if you are getting paid £26000 or above than you meet the requirements.

http://www.ukba.homeoffice.gov.uk/sitec ... ne2012-cop check this link and then select Section J Information and communication and look for the SOC CODE 3131 and you will know exactly what i am talking about.

In other words your SOC CODE and salary mention for that specific job title in the SOC CODE OF PRACTICE must be met otherwise you dont meet the requirement.

hope it help

regards

Rehan

[chin1605]

Hi,

There is no confusion here. The "Information and Communication' SOC Code document states clearly that:

"From 14 June 2012 applicants under Tier 2 (General) or Tier 2 (Intra company transfer) must have an offer of a job at or above NQF 6 if they are:
a. applying from abroad; or
b. applying to switch into Tier 2 (General) from a different immigration
route"

From the aforegoing, I can only assume that by choosing the 3131 Code which is a NQF Level 4 code, your employers put you at the risk of refusal. A code from the NQF Level 6 set of jobs should have been chosen.

Seek plenty of assurance from a solicitor, as I believe that the appeal will be 'iffy' if you go ahead with it.

i hope this helps.

[manci]

Thank you for your response.
Yes, I have right to appeal and I will be making an appeal with the help of solicitor by the end of week.
Everytime I go through these rules, it makes me so confused and i start doubting on the paperwork itself. Going through T2 policy guidance at para 64 onwards, it doesn't seem to apply for people switching from T1 to T2.
Also, as I am on Tier 1 PSW visa, UKBA haven't mentioned anything under PSW section, para 89 of T2 guide.
In regards to SOC code, I am not sure if it also applies to PSW visa holders.
I still seek your help and suggestions on what is right and what is not clear? Any suggestion that you think I should change or consider, please let me know.
Rules are so confusing and truely not clear to everyone.

Suggest you ask your solicitor specifically about the NQF question. IMHO the appeal may succeed on the grounds that you now have a CoS, which you didn't have at the time you applied, but would fail on the NQF issue. See Immigration Rule, Appendix A (attributes), para 74B
http://www.ukba.homeoffice.gov.uk/polic ... appendixa/
which is the same as the T2 policy guidance para 64 onwards. What ground do you have for saying that this doesn't apply to people switching from PSW to T2G?

Para 89 in the T2 guidance is about the RLMT not being required for PSW migrants. It does not say, as indeed none of the other paras of the gudiance do, that the NQF6 requirement does not apply to PSW migrants.

In my view the appeal could only succeed if you had some Article 8 (European Convention of Human Rights) grounds. If you don't, your best plan would be to try and find a NQF level 6 job (or a job which is a shortage occupation) which could be either with your present employer or with another sponsor and re-apply if you can. Even if it were with your present employer you would need a new CoS. If you cannot re-apply in-country, leave the UK and apply from abroad.

[Greenie]

The appeal cannot succeed on tier 2 grounds because in a PBS appeal the tribunal can only consider evidence submitted at the time of the application in relation to whether the appellant scores the required points.

[manci]

The appeal cannot succeed on tier 2 grounds because in a PBS appeal the tribunal can only consider evidence submitted at the time of the application in relation to whether the appellant scores the required points.

This is a rather special case because both the refusal decision and the granting of the sponsor licence took place on the same day, 11 Dec.

Under these circumstances, and apart from the skill level and salary issue, might an appeal not succeed on the grounds that had the caseworker known when s/he made the refusal decision that the sponsor licence had in fact been granted by another department of UKBA the same day, and had a CoS been assigned also on the same day, the application would probably have been successful? Also, if for practical reasons the CoS could not be assigned on that day, and in view of the employer's letter submitted with the application, the decision would probably have been deferred.

The appeal may still be dismissed but it seems that there would be some scope for arguing the case if it were not for the NQF issue.

[Greenie]

no, because the relevent legislation does not allow evidence not submitted at the time of the application to be considered.

http://www.legislation.gov.uk/ukpga/2002/41/section/85A

Nationality Immigration and Asylum Act 2002

85A Matters to be considered: new evidence: exceptions

(1) This section sets out the exceptions mentioned in section 85(5).

(2) Exception 1 is that in relation to an appeal under section 82(1) against an immigration decision of a kind specified in section 82(2)(b) or (c) the Tribunal may consider only the circumstances appertaining at the time of the decision.

(3) Exception 2 applies to an appeal under section 82(1) if—

(a) the appeal is against an immigration decision of a kind specified in section 82(2)(a) or (d),

(b) the immigration decision concerned an application of a kind identified in immigration rules as requiring to be considered under a “Points Based System”, and

(c) the appeal relies wholly or partly on grounds specified in section 84(1)(a), (e) or (f).

(4) Where Exception 2 applies the Tribunal may consider evidence adduced by the appellant only if it—

(a) was submitted in support of, and at the time of making, the application to which the immigration decision related,

(b) relates to the appeal in so far as it relies on grounds other than those specified in subsection (3)(c),

(c) is adduced to prove that a document is genuine or valid, or

(d) is adduced in connection with the Secretary of State’s reliance on a discretion under immigration rules, or compliance with a requirement of immigration rules, to refuse an application on grounds not related to the acquisition of “points” under the “Points Based System”.

[manci]

no, because the relevent legislation does not allow evidence not submitted at the time of the application to be considered.

http://www.legislation.gov.uk/ukpga/2002/41/section/85A

of course, that is the law. However, if it turns out that UKBA did not follow their established practice of considering post-application submissions received before the actual decision is made, they may well withdraw.

Also, refusal letters normally state that Article 8 grounds can be raised on appeal.

[Greenie]

Yes of course article 8 grounds can always be raised as 85A only limits new evidence relating to the scoring of points. i would be surprised if ukba withdrew in a case such as this which fell for refusal from the start.

[Ross123]

Hey guys!

I have the similar problem as the guy who got the refusal letter from the UKBA. Basically my story is next.

I had PSW visa and was applying to Tier 2 - General. My organization has applied for a license in June and we had to wait until end the of October when the license was approved. The license was approved right on the day which was an expiration date of my PSW visa. However, it took another week before we received by post a license and the instruction how to log in and create CoS.

After that my employer created CoS and gave it to me. I sent my visa application to UKBA one day before my visa was expiring and thus I sent a follow up letter with my CoS asking to attach it to my application.

A couple days ago I received my documents back without my passport. I got the refusal letter. I scored 0 on sponsorship because my NQF level is 4. Ans I scored 0 because my salary is not appropriate according to "code of practice Appendix J".

Overall the case worker was making argument based on 245HD of the Immigration Rule and paragraph 245HD(f) and under Appendix A with the reference to Appendix J.

Of course I disagreed with their position and I went through the paragraphs that they are making a ground to refuse me, and what I found in Immigration rules are very tricking and I probably found a reason that might become a significant argument in my favor.

The paragraphs 245HD and 245HD(f) cannot be a reason to refuse, because Appendix A of the Immigration rule in the paragraph 78C, which is related to Post-Study Work is stated that the migrant who is switching to Tier 2 general category can be awarded 30 points for the CoS. If you look paragraph 76B in the same Appendix A, you will see a table 11A.

In that table you will the breakdown of points availability. It is clearly shown that PSW and Shortage Occupation are two separate and they do not cross. Also in that table you can see that the term "Appropriate Salary" is mentioned only in the line with Shortage Occupation and is not stated in the line of PSW.

So in my opinion the PSW holder should automatically get 30 points for the CoS regardless if their job is NQF level 6. Therefore, since NQF rule doesn't apply to PSW holders they should get another 20 points for their salary if they are paid above the minimum, which is 20 000 GBP.

I believe these are quite substantial arguments to persuade the judge that the UKBA initially is making mistake by applying NQF to the PSW visa holders.

And these I am going to argue in the court.

Any opinions?

[Greenie]

Well it appears to me that you are only reading what you want to read
and in the process completely misinterpreting the rules to suit you.

Above table 11a it explains that all applicants must score 50 points for attributes. The first 30 points can be scored in a number of ways, eg post study work, resident labour market test. The second 20 can only be scored by appropriate salary. The appropriate salary is a separate column, it is not related only to shortage occupation, if it were, then only an applicant scoring 30 points for shortage occupation could score the other required points for appropriate salary.

Para 77E sets out that jobs must be at nqf level 6 or above unless an exception applies, and switching from psw is not one of them.

[Jeeves]

Well it appears to me that you are only reading what you want to read and in the process completely misinterpreting the rules to suit you.

Ditto.

Lesson one when applying for anything - RTFM first.

[Ross123]

Well it appears to me that you are only reading what you want to read
and in the process completely misinterpreting the rules to suit you.

Greenie I read through the paragraph 77E and there is one part I am confused again. What does this mean:

"or

(e) (i) the applicant is applying for leave to remain, or

(ii) the applicant previously had leave as:

(2) a Qualifying Work Permit Holder,"



does PSW can be considered as Work Permit Holder?

[Jeeves]

does PSW can be considered as Work Permit Holder?

No.

"Under Part 6A of these Rules, "Qualifying Work Permit Holder" means a Work Permit Holder who was issued a work permit in the business and commercial or sports and entertainment work permit categories."

Copied from: http://www.ukba.homeoffice.gov.uk/polic ... roduction/

[Ross123]

Thanx for the answers. If you don't mind could you please answer to the next question.

The Job Title that is in my CoS is related to "government positions" and I am not working in the government sector, so if I argue in the court that my employer mistakenly chosen the wrong type of Job title category and the job title which is close to my role is among NQF level 6.

So can I argue that it was simply a mistake and ask to give opportunity to correct the mistake. How the judge will take that? Of course with the evidence that my job title is related to the job profile of NQF level 6.

Thanx.

[Greenie]

See my post earlier in the thread about section 85A.

[hashmil]

Para 77E sets out that jobs must be at nqf level 6 or above unless an exception applies, and switching from psw is not one of them.

Hey greenie, that para also states that it can be NQF4(creative). which was my job code (the very code i used was in that para as well). yes, today i received my refusal

i have raised this as a separate topic, hasn't got noticed yet - http://www.immigrationboards.com/viewtopic.php?t=121317

[iceheat]

Hi All,

thank you all for your posts.
Please find response from my advisor:

"The people on the forum are missing a lot of the picture.

At the time you applied the code of practice were guidance. A case called Alvi stated you cannot impose mandatory requirements through guidance notes.

It should not fail on the NQF issue as you were on a PSW, it could fail on the salary issue except that the PSW route does not limit you to jobs on the code of practice which means the code should not define the salary you need.

It is a very complex area."

Don't know why UKBA made such rules to confuse all.

[manci]

The above advice is not correct. You applied for T2G on 13 September, it has therefore nothing to do with Alvi. Also, you applied for T2G, not PSW, therefore the NQF6 requirement, with appropriate salary, applies to you. The job you got the CoS for is SOC code 3131 which is not a NQF6 level job.